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socrateaser, Attorney
Category: Bankruptcy Law
Satisfied Customers: 39178
Experience:  Attorney and Real Estate Broker -- Retired (mostly)
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can a mortgage company file a claim in bankrupcy court againist

Customer Question

can a mortgage company file a claim in bankrupcy court againist the mortgage if they cannot produce a promiseasary note regarding the mortgage cite case law please
Submitted: 6 years ago.
Category: Bankruptcy Law
Expert:  socrateaser replied 6 years ago.
Under Fed. R. Bankr. P. 3001:

(c) Claim based on a writing. When a claim, or an interest in property of the debtor securing the claim, is based on a writing, the original or a duplicate shall be filed with the proof of claim. If the writing has been lost or destroyed, a statement of the circumstances of the loss or destruction shall be filed with the claim.

(d) Evidence of perfection of security interest. If a security interest in property of the debtor is claimed, the proof of claim shall be accompanied by evidence that the security interest has been perfected.

A creditor's timely-filed proof of claim or interest is deemed "allowed" unless an objection has been filed Bankr. Code § 502(a). In re G.I. Indus., Inc. (9th Cir. 2000) 204 F.3d 1276, 1280.

So, the answer is yes, a creditor can file the proof of claim without the original note, but the debtor can file an objection and the court will have to determine whether or not the creditor's claim is valid.

Hope this helps.